Remarks of U.S. Senator Barack Obama on the nomination of Justice Janice Rogers Brown

June 08, 2005

I thank the Chair.

I rise today to speak on the nomination of California Justice Janice Rogers Brown to the DC Circuit Court of Appeals. Now, let me begin by saying that the last thing I would like to be spending my time on right now is talking about judges.

I am sure that is true for many in this Chamber. I know that I certainly do not hear about filibusters and judges when I go back to Illinois and hold townhall meetings with people across the State. What I hear about are veterans who are concerned about their disability payments and families who are talking about how high gas prices were or how difficult it is to pay for college. And so I think this argument we have been having over the last several weeks about judicial nominations has been an enormous distraction from some of the work that is most important to the American people.

Moreover, I am not so naive as to think that speaking to an empty Chamber for the benefit of C-SPAN is somehow going to change people's minds or people's votes. I recognize that most of my colleagues, on both sides of the aisle, are fairly locked into their positions. I do not expect the President to appoint many judges of my liking. One of the things I have told some of my colleagues on this side of the aisle is that there is only one sure way to make sure Democrats are able to block what they consider to be bad judges, and that is to win elections.

And yet I feel compelled to rise on this issue to express, in the strongest terms, my opposition to the nomination of Janice Rogers Brown to the DC Circuit.

I think it is important for the American people to know just what it is we are getting. After the Supreme Court, as my esteemed colleague from Wisconsin just stated, the DC Circuit is widely viewed as the second highest court in the land. Three of our current Supreme Court Justices came directly from this court. Under its jurisdiction fall laws relating to all sorts of Federal agencies and regulations. This is a special court. It has jurisdiction that other appeals courts do not have. The judges on this court are entrusted with the power to make decisions affecting the health of the environment, the amount of money we allow in politics, the right of workers to bargain for fair wages and find freedom from discrimination, and the Social Security that our seniors will receive. It is because of this power that we deserve to give the American people a qualified judicial nominee to serve on the DC Circuit.

Now, the test for a qualified judicial nominee is not simply whether they are intelligent. Some of us who attended law school or are in business know there are a lot of real smart people out there whom you would not put in charge of stuff. The test of whether a judge is qualified to be a judge is not their intelligence. It is their judgment.

The test of a qualified judicial nominee is also not whether that person has their own political views. Every jurist surely does. The test is whether he or she can effectively subordinate their views in order to decide each case on the facts and the merits alone. That is what keeps our judiciary independent in America. That is what our Founders intended.

Unfortunately, as has been stated repeatedly on this floor, in almost every legal decision that she has made and every political speech that she has given, Justice Brown has shown she is not simply a judge with very strong political views, she is a political activist who happens to be a judge. It is a pretty easy observation to make when you look at her judicial decisions. While some judges tend to favor an activist interpretation of the law and others tend to believe in a restrained interpretation of the law providing great deference to the legislature, Justice Brown tends to favor whatever interpretation leads her to the very same ideological conclusions every single time.

So when it comes to laws protecting a woman's right to choose or a worker's right to organize, she will claim that the laws that the legislature passed should be interpreted narrowly. Yet when it comes to laws protecting corporations and private property, she has decided that those laws should be interpreted broadly. When the rights of the vulnerable are at stake, then she believes the majority has the right to do whatever it wants. When the minority happens to be the minority of people who have privilege and wealth, then suddenly she is countermajoritarian and thinks it is very important to constrain the will of the majority.

Let me just give you a couple examples. In a case reviewing California's parental notification law, Justice Brown criticized the California Supreme Court decision overturning that law, saying that the court should have remained "tentative, recognizing the primacy of legislative prerogatives." She has also repeatedly tried to overturn the fact that California law recognizes Tameny claims, a line of cases that establishes that an employer does not have an unfettered right to fire an employee, but that the right has limits according to fundamental public policy. She says judicial restraint is critical. She claims that public policy is "a function first and foremost reserved to the legislature."

So on these cases dealing with a woman's right to choose, worker protections, punitive damages, or discrimination, she wants the judge to stay out of the legislative decisionmaking process. But Justice Brown doesn't always want the courts to exercise restraint and defer to the legislature. When Justice Brown wanted to limit the ability of juries to punish companies that engage in severe discrimination, a fellow judge on the California Supreme Court accused her of engaging in "judicial law making." Instead of denying it, Justice Brown defended her judicial activism. She called it creativity. This is what she said: "All judges make law. It is arrogance, carelessness and a lack of candor that constitute impermissible judicial practice, not creativity."

Justice Brown has also gone out of her way to use her position in the courts to advocate for increased protections for property owners. In a case about a developer that wanted to break a city rent control law, Justice Brown dismissed the fact that a majority of the city's voters had approved of that law and thought that the case should be an exception to the philosophy of narrow judicial review. Justice Brown believed that this case was one in which "some degree of judicial scrutiny... is appropriate." Which is it, Justice Brown? In some cases you think we should defer to the legislature and in some cases, apparently, you think it is appropriate for judges to make law. What seems to distinguish these two types of cases is who the plaintiff is, who the claimant is.

If the claimant is powerful -- if they are a property owner, for example -- then she is willing to use any tool in her judicial arsenal to make sure the outcome is one they like. If it is a worker or a minority claiming discrimination, then she is nowhere to be found.

Judicial decisions ultimately have to be based on evidence and on fact. They have to be based on precedent and on law. When you bend and twist all of these to cramp them into a conclusion you have already made -- a conclusion that is based on your own personal ideology -- you do a disservice to the ideal of an independent judiciary and to the American people who count on an independent judiciary.

Because of this tendency, and because of her record, it seems as if Justice Brown's mission is not blind justice but political activism. The only thing that seems to be consistent about her overarching judicial philosophy in an unyielding belief in an unfettered free market and a willingness to consistently side with the powerful over the powerless.

Let's look at some of her speeches outside of the courtroom. In speech after speech, she touts herself as a true conservative who believes that safety nets -- such as Social Security, unemployment insurance, and health care -- have "cut away the very foundation upon which the Constitution rests."

Justice Brown believes, as has already been stated in the Chamber, that the New Deal, which helped save our country and get it back on its feet after the Great Depression, was a triumph of our very own "Socialist revolution." She has equated altruism with communism. She equates even the most modest efforts to level life's playing field with somehow inhibiting our liberty.

For those who pay attention to legal argument, one of the things that is most troubling is Justice Brown's approval of the Lochner era of the Supreme Court. In the Lochner case, and in a whole series of cases prior to Lochner being overturned, the Supreme Court consistently overturned basic measures like minimum wage laws, child labor safety laws, and rights to organize, deeming those laws as somehow violating a constitutional right to private property. The basic argument in Lochner was you can't regulate the free market because it is going to constrain people's use of their private property. Keep in mind that that same judicial philosophy was the underpinning of Dred Scott, the ruling that overturned the Missouri Compromise and said that it was unconstitutional to forbid slavery from being imported into the free States.
That same judicial philosophy essentially stopped every effort by Franklin Delano Roosevelt to overcome the enormous distress and suffering that occurred during the Great Depression. It was ultimately overturned because Justices, such as Oliver Wendell Holmes, realized that if Supreme Court Justices can overturn any economic regulation -- Social Security, minimum wage, basic zoning laws, and so forth -- then they would be usurping the rights of a democratically constituted legislature. Suddenly they would be elevated to the point where they were in charge as opposed to democracy being in charge.

Justice Brown, from her speeches, at least, seems to think overturning Lochner was a mistake. She believes the Supreme Court should be able to overturn minimum wage laws. She thinks we should live in a country where the Federal Government cannot enforce the most basic regulations of transparency in our security markets, that we cannot maintain regulations that ensure our food is safe and the drugs that are sold to us have been tested. It means, according to Justice Brown, that local governments or municipalities cannot enforce basic zoning regulations that relieve traffic, no matter how much damage it may be doing a particular community.

What is most ironic about this is that what Justice Brown is calling for is precisely the type of judicial activism that conservatives have been railing against for the last 50 years.

Supreme Court Justice Scalia is not somebody with whom I frequently agree. I do not like a lot of his judicial approaches, but at least the guy is consistent. Justice Scalia says that, generally speaking, the legislature has the power to make laws and the judiciary should only interpret the laws that are made or are explicitly in the Constitution. That is not Justice Brown's philosophy. It is simply intellectually dishonest and logically incoherent to suggest that somehow the Constitution recognizes an unlimited right to do what you want with your private property and yet does not recognize a right to privacy that would forbid the Government from intruding in your bedroom. Yet that seems to be the manner in which Justice Brown would interpret our most cherished document.

It would be one thing if these opinions were confined to her political speeches. The fact is she has carried them over into her judicial decisionmaking. That is why the California State Bar Association rated her as "unqualified" to serve on the State's highest court. That is why not one member of the American Bar Association found her to be very qualified to serve on the DC Circuit, and why many members of the bar association found her not qualified at all.

It is also why conservative commentators, such as Andrew Sullivan and George Will, while agreeing with her political philosophy, simply do not see how she can be an effective judge. Here is what Sullivan said:

She does not fit the description of a judge who simply follows the law. If she isn't a "judicial activist," I don't know who would be.

Sullivan added that he is in agreement with some of her conservative views but thinks "she should run for office, not the courts."

Columnist George Will, not known to be a raving liberal, added recently that he believes Justice Brown is out of the mainstream of conservative jurisprudence.

Let me wrap up by making mention of a subtext to this debate. As was true with Clarence Thomas, as was true with Alberto Gonzales, as was true with Condoleezza Rice, my esteemed colleagues on the other side of the aisle have spent a lot of time during this debate discussing Justice Brown's humble beginnings as a child of a sharecropper. They like to point out she was the first African American to serve on the California Supreme Court.

I, too, am an admirer of Justice Brown's rise from modest means, just as I am an admirer of Alberto Gonzales's rise from modest means, just as I am an admirer of Clarence Thomas's rise from modest means, just as I am an admirer of Condoleezza Rice's rise from modest means. I think it is wonderful. We should all be grateful where opportunity has opened the doors of success for Americans of every background.

Moreover, I am not somebody who subscribes to the view that because somebody is a member of a minority group they somehow have to subscribe to a particular ideology or a particular political party. I think it is wonderful that Asian Americans, Latinos, African Americans, and others are represented in all parties and across the political spectrum. When such representation exists, then those groups are less likely to be taken for granted by any political party.

I do not think that because Justice Brown is an African-American woman she has to adhere to a particular political orthodoxy, something that has been suggested by the other side of the aisle. Just as it would be cynical and offensive that Justice Brown be vilified simply for being a Black conservative, it is equally offensive and cynical to suggest that somehow she should get a pass for her outlandish views simply because she is a Black woman.

I hope we have arrived at a point in our country's history where Black folks can be criticized for holding views that are out of the mainstream, just as Whites are criticized when they hold views that are out of the mainstream. I hope we have come to the point where a woman can be criticized for being insensitive to the rights of women, just as men are criticized when they are insensitive to the rights of women.

Unfortunately, Justice Brown's record on privacy and employment discrimination indicates precisely such an insensitivity.

I will give one example. In a case where a group of Latino employees at Avis Rent A Car was subjected to repeated racial slurs in the workplace by another employee, the lower court found that Avis, in allowing this to go on, had created a hostile environment. Justice Brown disagreed with and criticized the decision.

In her opinion, she wrote that racially discriminatory speech in the workplace, even when it rises to the level of illegal race discrimination, is still protected by the first amendment. This was despite U.S. Supreme Court opinions that came to the exact opposite conclusion.

Justice Brown went so far as to suggest that the landmark civil rights law, Title VII of the Civil Rights Act of 1964, could be unconstitutional under the first amendment.

I believe if the American people could truly see what was going on here they would oppose this nomination, not because she is African American, not because she is a woman, but because they fundamentally disagree with a version of America she is trying to create from her position on the bench. It is social Darwinism, a view of America that says there is not a problem that cannot be solved by making sure that the rich get richer and the poor get poorer. It requires no sacrifice on the part of those of us who have won life's lottery and does not consider who our parents were or the education received or the right breaks that came at the right time.

Today, at a time when American families are facing more risk and greater insecurity than they have in recent history, at a time when they have fewer resources and a weaker safety net to protect them against those insecurities, people of all backgrounds in America want a nation where we share life's risks and rewards with each other. And when they make laws that will spread this opportunity to all who are willing to work for it, they expect our judges to uphold those laws, not tear them down because of their political predilections. Republican, Democrat, or anyone in between. Those are the types of judges the American people deserve. Justice Brown is not one of those judges. I strongly urge my colleagues to vote against this nomination.